Mediation and Negotiation: Give Them a Little Time
I'm always a little surprised that parties to a pre-trial settlement conference or mediation have any expectation that they might be able to resolve a dispute of years standing in half a day, or even a single day. That they often do settle their differences in so short a time is pretty amazing when you consider the time and effort (and resulting polarization) that have gone into the litigation of that dispute.
Mediators and settlement judges often feel as if they're fighting the clock because the parties are impatient with the process and primed to storm out of the room if they feel the other side is not negotiating in "good faith."
Attorneys often cynically say that all we mediators do is "keep the parties in the room." I'm certain I won't be the first to acknowledge that this task is not only one of our main objectives, sometimes it's the toughest work we will do that day, making creative problem solving; "expanding the distributive bargaining pie," reality testing and re-framing the parties' options seem like child's play.
From the mediator's seat, I have one modest request for counsel and their clients -- have a little patience with the process.
More often than not, the business people need time to digest new insights, reassess their positions and perhaps even check their books and records again before making a sound business decision. None of us do the rest of us a favor by demanding that people make hard decisions under the pressure of time.
Remember that readiness to make a business decision is as emotional as any other major life decision. I have seen some business people take a day or two to mourn their losses before they are ready to accept them.
I have also seen actual tears well up in the eyes of the most hardened businessmen when they realize that trial will not save them -- that a "just outcome" (i.e."I will prevail at trial and recover all of my losses") is as unlikely as winning the lottery. This is the false promise of litigation. It keeps alive the parties' hope that they will be completely vindicated and their adversaries punished at trial.
Although all competitive business people, trial lawyers and commercial litigators have their Conan the Barbarian moments, the "pleasure" of victory -- as voiced here by California Governor Schwarzenegger -- remains a greater fantasy than the one about a body-builder from Austria ascending to high political office in the United States.
Anything's possible. But consider the likelihoods.
And now, Arnold!!